Summary

The regulations in the four areas have been actively and negatively influenced by the public law. For example, the definition of electronic record,³⁴⁴ electronic signature,³⁴⁵ and other concepts in the eUCP, share a strong resemblance to the definitions set out in the UNCITRAL Model Law on Electronic Commerce. Bolero employed the method of novation, which is allowed under many jurisdictions, to solve the problem of negotiable electronic B/Ls.

However, these regulations do not always conform to public laws. In some cases, complying

343 See https://www.incegd.com/en/knowledge-bank/bimcos-new-charterparty-clause-for-electronic-bills-of-lading

344 “Electronic record” in the eUCP is defined as “data created, generated, sent, communicated, received or stored by electronic means that is capable of being authenticated as to the apparent identity of a sender the apparent source of thedata contained in it, and as to whether it has remained complete and unaltered, and is capable of being examined for compliance with the terms and conditions of the eUCP credit.”

345 “Electronic signature” in the eUCP means “a data process attached to or logically associated an electronic record and executed or adopted by a person in order to identify person and to indicate that person’s authentication of the electronic record.”

with the distinct statutes in different jurisdictions is impossible, so the regulators have to create their own rules to provide certainty. The obvious evidence is the “message as evidence” clause in the Bolero Rulebook. This clause requires users not to challenge the admissibility of the electronic evidence before both state and private courts. In some cases, the private regulations have been deliberately omitted to regulate certain issues to avoid the unnecessary hurdles for the regulatees. The bylaws in the cargo insurance branch and the eUCP created by the ICC have decided not to lay down requirements for electronic signature despite some public laws that set stringent rules governing trust service and electronic identification.³⁴⁶ Private regulators made these decisions based on the factual status of the regulatory environment and believed that this step will be beneficial to the regulatees. To avoid conflict with public laws, the regulations in the mentioned areas include the element of democracy or alternative dispute resolution so that regulatees will have an opportunity to raise their voice. Consequently, a set of rules of conduct that is inconsistent with the public laws gained wide acceptance throughout the industry and functioned parallel to the public laws.

In addition, the regulations in different areas showed a certain degree of interplay with each other. Although the rules in respective branches are produced independently, these rules have also drawn reference from the related branches and considered the possibility of compatibility. Some of the references are quite obvious. The BIMCO electronic B/L clause, for example, is clearly devised based on the trading system of Bolero and essDOCS and has considered the standards of the P&I Clubs regarding trading systems.³⁴⁷ The requirements in the second subclause, which requires ship owners to subscribe and use the charterers’ chosen electronic B/L “platform” and stipulates that these “platforms” should be approved by the P&I Clubs, is the straightforward proof of this reference.³⁴⁸ The eUCP Regulation drafted by the ICC has also based the rules of document presentation on the functioning mechanism of the Bolero system. When explaining the beginning of the time for examination of the presented

346 In the ICC Guide to the eUCP, a warning is given, saying that some interpretations of the European Electronic Signatures Directive can result in the imposition of a greater degree of security with regard to signatures than imposed by the eUCP. See Byrne, James E., and Dan Taylor. ICC Guide to the eUCP: Understanding the Electronic Supplement to the UCP 500. ICC Publ., 2002, on pp. 45–46.

347 See subsection 4.

348 See BIMCO electronic B/L clause, subclause (b), available at https://www.bimco.org/contracts-and-clauses/bimco-clauses/electronic-bills-of-lading-clause.

documents, the ICC Guide to eUCP provides the example of how the Bolero system operates to create and send notices of completeness.³⁴⁹ The presentation of documents of the world’s first L/C subject to the eUCP is completed by Bolero. The other kind of interplays between the relevant regulation areas is inconspicuous. The drafting committee of one regulatory branch can include the delegates from other branches to directly gather opinions or the regulators from different branches can share a common business partner to become connected. Identifying solid evidence for these subtle connections is difficult because the private regulators protect their privacies. Nonetheless, traces can support the existence of this kind of interplay. One of the traces can be found in the cooperate structure of the Bolero. As mentioned in the above section, BIL was co-founded by the SWIFT and the TT-Club. Both companies are important players in the banking and insurance branches. The former is a bank-owned cooperative that provides secure financial messaging service for over 11,000 banking and security organizations, whereas the former provides insurance services for ship operators, ports, and transport firms across the world.³⁵⁰ The establishment of Bolero is basically the cooperation of banks and insurance providers. During the time when the two companies held the BIL, the Bolero was linked with their respective business partners and the Bolero’s Core Messaging Platform and Title Registry were designed.³⁵¹ Until today, SWIFT has maintained a close relationship with the ICC and both jointly set standards for important practices in the banking area.³⁵² The interplay of regulations in related areas created a high degree of compatibility among each other, thereby enabling the electronic documents used in the related branches to circuit freely across branches and national borders. The insurance certificates issued by the Fonterra will be accepted by banks that issue electronic L/Cs subject to the eUCP without imposing EU’s strict electronic identification rules on the presented documents.

Aside from the mutual reference as a means of cooperation, competition is a common

349 See Byrne, James E., and Dan Taylor. ICC Guide to the eUCP: Understanding the Electronic Supplement to the UCP 500, ICC Publ., 2002, on p.92.

350 See from their websites, available at https://www.swift.com/about-us/discover-swift and https://www.ttclub.com/about-us/.

351 Eckardt, Tobias. The Bolero Bill of Lading under German and English Law, Sellier, European Law Publ., 2004, on p. 21.

352 The SWIFT and the ICC have jointly designed the new rules for Bank Payment Obligation (BPO) in international trade.

Available at:https://iccwbo.org/media-wall/news-speeches/swift-and-icc-collaborate-on-enhanced-rules-and-tools-for-trade-finance/

element in the private regulatory system. The empirical study indicates that the rules produced by each electronic data processing platform competes with each other to an extent. The three data processing companies analyzed in this doctoral thesis have produced their own rules to address several issues, such as working mechanism, allocation of responsibility, and governing laws. Given the overlap among their businesses, the users of these platforms will have the opportunity to choose between the regulations. This provision typically motivates companies to introduce convenient and practical regulations and dedicate additional efforts to satisfy the needs of the regulatees.

VI.

Year Event Impact

1994 UCP 500 Teletransmission can be used in L/C

1995 Bolero Project Launching of the EC

1998 BIL Joining of SWIFT and TT Clubs

1999 Bolero Rulebook The Bolero Rulebook 1999 was created 2002 eUCP Version 1.0 Establishment of rules for electronic L/C

2005 essDOCS Second company for paperless trade

2006 Lloyd’s bylaw Lloyd’s rule for electronic certificate

2007 eUCP Version 1.1 Slight variations

2010 First electronic L/C Completed by the Bolero

2010 P&I Clubs approval P&I Clubs approved Bolero and essDOCS 2014 Bimco e-B/L clause Acknowledge Bolero, essDOCS and e-Title

2015 e-Title TM Third company for paperless trade

2015 P&I Clubs approval P&I Clubs approved e-Title TM

2017 Lloyd’s e-Certificate The guidelines for e-Certificate was developer

2019 eUCP Version 2.0 Addition of two new articles

(Memorabilia to reveal the connections between different regulations)